Findings Of Fact At the time of the final hearing the parties stipulated in writing as set forth in Hearing Officer Exhibit #1 to certain stipulations of fact refer to certain times a day. The stipulation was entered into between the parties with the state understanding that those times of day are approximate with the exception of Paragraph 7 of Hearing Officer Exhibit #1 (Paragraph 1G of this order) wherein the time recited is deemed to be precise. Those stipulations of fact are set forth below: John Eugene Lerro is a duly licensed deputy pilot pursuant to Chapter 310, Florida Statutes (1979). On June 17, 1980, the pilotage license of Captain Lerro was suspended pursuant to an "emergency order" entered by the Department of Professional Regulation on the grounds that his continued pilotage constituted an immediate danger to the public health, safety, and welfare. On May 9, 1980, Captain Lerro boarded the M/V SUMMIT VENTURE at approximately 6:30 a.m. for the purpose of piloting that vessel into the Port of Tampa Bay. Accompanying Captain Lerro, as an observer, was deputy pilot Bruce Atkins. The M/V SUMMIT VENTURE is a 608 foot (LOA) Phosphate Rock Carrier registered in Monrovia, Liberia. On May 9, 1980, the said vessel was in ballast and drew nine feet six inches forward, twenty-one feet three inches aft. Between 6:30 and 7:30 a.m. on May 9, 1980, the tide in Tampa Bay was at flood with an approximate current of 1 knot. During that time period, maritime traffic in Tampa Bay was normal, with vessels proceeding both inbound and outbound. As the M/V SUMMIT VENTURE proceeded into Tampa Bay, it passed abeam of Buoy 16 in Mullet Key Channel at 7:23 a.m. A lookout (bosun) was ordered forward by Captain Lerro at 7:13 a.m. At approximately 7:15 a.m. Captain Lerro ordered an anchor watch (carpenter) posted on the bow. Both the lookout and anchor watch arrived at the bow of the vessel at 7:23 a.m. The M/V SUMMIT VENTURE collided with the Sunshine Skyway Bridge at approximately 7:34 a.m., May 9, 1980. The M/V SUMMIT VENTURE was equipped with a Sperry Mark IV course recorder. This device, driven by a gyrocompass repeater motor, operates electrically from the ship's master gyrocompass. The recorder is equipped with a clock mechanism which drives a roll of graph paper under a pair of marking pens. Graduated time and heading increments are printed on the paper. The markings on this paper produce a permanent record of the ship's heading with respect to time. The rudder, steering mechanism, engine telegraph and other related mechanical equipment of the M/V SUMMIT VENTURE were in proper working order and functioned normally on May 9, 1980. The rudder of the M/V SUMMIT VENTURE was operated hydraulically and required approximately 22 seconds of time to travel from the hard starboard to hard port position. For the past three and one-half years Respondent has been a certificated deputy pilot at the Port of Tampa, Florida, and at all times material hereto was duly licensed by Petitioner to perform piloting duties. Respondent is a graduate of the merchant marine Academy of the State of New York, and possess an unlimited Master's License for the ports of Tampa, Miami, and Fort Lauderdale. The Respondent served for one year as a pilot in the Panama Canal Zone prior to becoming a certificated deputy pilot at the Port of Tampa. Respondent is of above-average intelligence, mentally competent, and possesses the ability and judgment to make the types of decisions required of a certificated deputy pilot. Respondent has never had a any disciplinary action taken against his maritime licenses other than that which is the subject of this proceeding. At midnight on May 8, 1980, the Respondent, John E. Lerro, (hereinafter referred to as Lerro) was asleep at the pilot's station at Egmont Key. He had been asleep since the night of May 8, 1980, after taking a ship outbound. Between 4:00 a.m. and 4:20 a.m. on May 9, 1980, Lerro was awakened by Steve Pimental, a Tampa Bay pilot boatman. After being awakened Lerro proceded to the pilot station's reading room, arriving there between 4:30 a.m. and 4:35 a.m. on May 9, 1980. While walking to the reading room Lerro could see Buoy #11 and noted that visibility was roughly two miles. Upon arriving at the reading room Lerro instructed the pilot boatman to contact the M/V SUMMIT VENTURE to inquire about the weather. Lerro was scheduled to be transferred to the SUMMIT VENTURE for the purpose of piloting the vessel into Tampa Bay. Based on the SUMMIT VENTURE's reply, Lerro concluded that the visibility was not sufficient to start the vessel inbound to Tampa Bay. Lerro told the Captain of the SUMMIT VENTURE to stay where he was until further instructions. Approximately 30 to 45 minutes later Lerro contacted the tugboat DIXIE PROGRESS inquiring about the weather. The DIXIE PROGRESS, then located in Egmont Channel, reported visibility of approximately three miles. Lerro concluded that visibility was sufficient to transfer to the SUMMIT VENTURE and start her inbound. Lerro and Bruce Atkins were then ferried to the lighthouse by Steve Pimental on the pilot boat TAMPA. Atkins was duly licensed to act as a deputy pilot on Tampa Bay. He had just become a new pilot and as such had to ride for thirty days with an existing pilot. May 9, 1980 was his thirtieth day. The next day he was scheduled to begin work as a deputy pilot on Tampa Bay. Lerro and Atkins transferred from the pilot boat TAMPA to the pilot boat EGMONT at the lighthouse between 5:35 a.m. and 5:45 a.m. on May 9, 1980. At approximately 6:30 a.m. Lerro and Atkins transferred from the EGMONT to the SUMMIT VENTURE near the sea buoy. As Atkins and Lerro boarded the SUMMIT VENTURE a light tanker named the PURE OIL piloted by John G. Schiffmacher, a licensed Tampa Bay pilot, started outbound from the Port of Tampa. At approximately that same time a 7,000 ton motor bulk carrier named THE GOOD SAILOR was passing outbound under the Sunshine Skyway Bridge piloted by Earl G. Evans, also a licensed Tampa Bay pilot. Upon boarding the SUMMIT VENTURE Lerro introduced himself and Atkins to the Captain and told him that Atkins might take the con during the inbound trip. Lerro properly acquainted himself with the vessel's correct draft, radar equipment, engine speed, compass error, and other facts peculiar to that particular vessel. Lerro then took the con and the SUMMIT VENTURE began its inbound trip into Tampa Bay. After ordering the ship to proceed half-ahead to the north of the channel in order to avoid an outbound vessel grounded near Buoy #3, Lerro turned the con over to Atkins. When the SUMMIT VENTURE passed Buoy #3 Lerro sighted the tugboard DIXIE PROGRESS by radar as it neared Buoy #8. Lerro did not have visual contact with the tugboat's running lights. Lerro radioed the DIXIE PROGRESS to make arrangements to overtake and pass her and was told that the tug was in a rain squall. When the DIXIE PROGRESS was halfway between Buoys #8 and #10 Lerro could visually see the range lights and correctly surmised that the rain squall had dissipated, or moved elsewhere. As the SUMMIT VENTURE arrived at Buoy #8 Lerro visually sighted THE GOOD SAILOR which was just passing Buoy #13. By that sighting Lerro estimated that visibility was approximately three miles. The SUMMIT VENTURE passed the lighthouse on Egmont Key at 7:06 a.m. At 7:13 a.m. the SUMMIT VENTURE passed Buoy #11 and Lerro noticed drizzling rain for the first time. Because of the drizzling rain Lerro instructed the ship's captain to place a lookout and anchor watch on the bow. The Captain of the SUMMIT VENTURE complied with Lerro's instructions. As the SUMMIT VENTURE passed Buoy #14 the rain began to fall harder whereupon Lerro relieved Atkins of the con. At that time Lerro had visual contact with the next buoy, Buoy #16. In addition the radar on board the SUMMIT VENTURE was working very well, giving Lerro a clear picture of the buoys ahead. Lerro testified that it was the best radar with which he had ever worked. The radar mast was approximately 500' aft of the bow. Hereafter distances are radar ranges, not distance from the bow. As the SUMMIT VENTURE passed Buoy #14 it made radar contact with the outbound PURE OIL being piloted by Schiffmacher. At that time Lerro contacted Schiffmacher by radio and ascertained that the PURE OIL was 2.3 miles east of the Sunshine Skyway Bridge outbound and that the SUMMIT VENTURE was 3 miles west of the same bridge inbound. Schiffmacher told Lerro that the PURE OIL was making 12 knots. Assuming constant speed thereafter Lerro could reasonably expect that the PURE OIL would reach the Sunshine Skyway Bridge before the SUMMIT VENTURE. At 7:23 a.m. the SUMMIT VENTURE passed Buoy #16. Lerro had noted no increase in rainfall between Buoys #14 and #16. Upon arriving at Buoy #16 Lerro was unable to visually sight Buoys #1A and #2A, but was able to make radar contact with them. Since he had a clear radar picture of the next buoys, #1A and #2A, he proceeded inbound. When the SUMMIT VENTURE got within .2 miles of Buoys #1A and #2A the rainfall rate increased suddenly and dramatically as did the wind velocity. Because of the heavy rainfall radar contact with Buoys #1A and #2A was lost. The radar screen was solid yellow and no return could be distinguished on it. Lerro knew that the SUMMIT VENTURE was in extreme difficulty and immediately began reviewing his options. Lerro's first thought was to turn hard to port. He immediately tried to contact Schiffmacher on the PURE OIL to determine that vessel's position outbound. He knew that if the PURE OIL had continued outbound from her last known position a turn hard to port would take the SUMMIT VENTURE across her path. Because the PURE OIL was light and therefore explosive Lerro was properly concerned about the catastrophic consequences of a collision between the two vessels. Lerro's attempt to communicate by radio with Schiffmacher was unsuccessful. The radio response he received to his call was garbled and he was unable to garner from it any useful information. Therefore, because he reasonably believed the PURE OIL to be outbound in his vicinity Lerro discarded the option of turning hard to port. When the SUMMIT VENTURE was .1 mile from Buoys #1A and #2A radar contact was momentarily reestablished and Atkins, monitoring the radar, reported sighting the two buoys and further reported that the SUMMIT VENTURE was within the A Cut Channel. This radar contact was maintained for two sweeps of the radar and then lost permanently. At that point an option considered by Lerro was to go hard to starboard into a spoil area. He discarded that option because the depth of the spoil area is unknown and not marked on the charts and he did not wish to expose the vessel broadside to the wind with the potential effect that would have on the control of the vessel. Lerro was concerned that such a turn would result in a collision with the bridge. In addition to the options of going port and starboard, Lerro considered stopping the vessel by reversing the engines and dropping anchor. He discarded that option because he did not think the ship could stop under control before it hit the bridge. Seconds after Atkins reported radar contact on the buoys at .1 mile, the bow lookout reported a buoy on the starboard bow. That buoy was 1A or 2A and probably 2A. It was not positively identified by the bow lookout. Having discarded the above three options Lerro waited no more than 15 seconds after the bow lookout reported "buoy starboard bow" and started a turn to port to the next course which he thought would successfully bring the SUMMIT VENTURE underneath the Sunshine Skyway Bridge. A normal turn was made using port 10 degrees rudder. Lerro made a normal turn from a late turning point because on the trip up the Bay the prevailing wind had been from the southwest which, during the turn, would push the vessel to port. Further, Lerro wanted to stay on the right side of the channel to clear Schiffmacher in the PURE OIL which Lerro believed to be outbound. During the turn Lerro maintained the ship's speed at half- ahead, approximately 11 knots, so as not to jeopardize control of the vessel in the high wind. After completion of the turn Lerro changed the speed of the vessel from half-ahead to slow-ahead. When Lerro saw the Sunshine Skyway Bridge he immediately realized he was not in the proper position in the channel and put the engines on double- full-astern while ordering both anchors dropped, and the helm hard to port. The port anchor was dropped but, through no fault of Lerro, the starboard anchor was not dropped. Lerro made visual contact with the Sunshine Skyway Bridge more than a ship's length from the bridge. At 7:34 a.m. the starboard bow of the SUMMIT VENTURE impacted the Sunshine Skyway Bridge. Within seconds after the SUMMIT VENTURE struck the bridge Lerro broadcast a mayday call over the radio to the Coast Guard. He then had the captain of the vessel get the crew on deck to look for survivors. Prior to boarding the SUMMIT VENTURE Lerro obtained all information normally obtained concerning the weather conditions then existing and which he would confront during his transit into Tampa Bay. He reasonably concluded that the weather conditions were such that the SUMMIT VENTURE could successfully transit the Bay to its destination. The heavy storm that hit the SUMMIT VENTURE as it approached Buoys #1A and #2A was not reasonably foreseeable in its intensity. Several ships and smaller vessels on the Bay were also caught unaware by the sudden and intense storm. Captain Earl G. Evans, a Tampa Bay pilot for twenty-three years, was piloting the vessel THE GOOD SAILOR outbound between the Sunshine Skyway Bridge and the sea buoy. When THE GOOD SAILOR was in the vicinity of Buoy #10 off Egmont Key heading into the direction from which the storm came, Captain Evans was hit unexpectedly by the storm. According to his testimony he had no warning that the storm was coming until it was actually upon him and his visibility was reduced to zero. He also lost the use of his radar because of the rain clutter. Captain Evans reported that when the storm hit his ship there was an explosion sounding like the firing of a high powered rifle in a closed room which occurred in the wheel house of THE GOOD SAILOR. He assumed the explosion was caused by a lighting strike, though he was not able to confirm that supposition. The SUMMIT VENTURE's inbound transit on the morning of May 9, 1980 was normal with weather conditions commonly encountered and normal traffic on the Bay until the vessel reached a point in Mullet Key Channel .9 miles from the Sunshine Skyway Bridge, and .2 miles from the turning buoys #1A and #2A which mark the entrance to A Cut Channel. At that point the SUMMIT VENTURE and Lerro encountered a sudden, unexpected and intense storm which reduced visibility to zero. Prior to that storm the prevailing wind throughout the ships's transit had been from the southwest at 15 to 20 miles per hour. This caused Lerro to steer several degrees to the right of the normal couse in Mullet Key Channel to compensate for the effect of the wind on the vessel which was setting the SUMMIT VENTURE to the north. At the onset of the storm the wind velocity rapidly increased to approximately 50 to 60 miles per hour and possibly reached 70 miles per hour. Between 7:00 a.m. and 8:00 a.m. on the morning of May 9, 1980 the prevailing wind direction shifted from predominantly southwest through west to northwest. Several witnesses for Petitioner who experienced the storm pertinent to this proceeding estimated that the winds from the storm were westerly to northwesterly. One person testified that the winds at one time during the storm were predominantly out of the south. One of those witnesses, a bridge tender located on the Sunshine Skyway less than three nautical miles from the point of the collision, estimated the winds of the storm to be out of the northwest. The manager of the toll booth located on the northern end of the Sunshine Skyway less than six nautical miles from the point of collision estimated the winds of the storm to be out of the west. A third witness of Petitioner was a commuter who came to a stop within several hundred feet of the point of collision on the Sunshine Skyway Bridge. He also estimated the winds to be out of the west. A fourth witness for Petitioner was a pilot boat captain inbound from Buoy #8 outside Egmont Key who testified that at one point during the storm, as he headed his vessel into the wind, the wind was predominantly out of the south. Another witness for Petitioner, Earl G. Evans, a Tampa Bay pilot who was piloting THE GOOD SAILOR in the vicinity of Buoy #10 off the tip of Egmont Key, testified that he headed his ship into the wind and that by his compass the wind was out of 280 degrees. Evans and THE GOOD SAILOR were approximately five and one-half nautical miles from the point of collision at that time. In addition, a witness for the Respondent, Judge Mark McGarry, Circuit Judge for the Sixth Judicial Circuit, State of Florida, was camping at Fort DeSoto, approximately four nautical miles west of the point of collision at the time of the storm. He accurately estimated that the winds of the storm at his location were out of 330 degrees. It is therefore concluded as a matter of fact that at the time of the storm that struck the SUMMIT VENTURE approximately .9 miles from the Sunshine Skyway Bridge, the prevailing winds moved very quickly, in more than a few minutes, from the southwest to westerly to northwest a velocity of 50 to 60 miles per hours, perhaps reaching as high as 70 miles per hour. Of the several expert pilots who testified on the question, all agree that when Lerro lost visibility and radar contact at the onset of the storm approximately .9 miles from the Sunshine Skyway Bridge, his choice to attempt to navigate through the bridge as opposed to turning port, starboard, or going full-astern was a reasonable, prudent choice. Further, at least one expert pilot with twenty-three years experience testified that in his opinion Lerro's choice to attempt to navigate through the bridge was the only reasonable, prudent choice to make. The Petitioner's consultant, Ernest Clothier, an expert pilot with twenty-six years experience in New York Harbor, testified that in his opinion when Lerro lost radar contact with the buoys, he only had three viable options. In Clothier's opinion Lerro had the option of going hard port, hard starboard, or of going through the bridge. These are the same three options considered by Lerro. Clothier emphatically testified that going full-astern and attempting to stop the ship was not a viable option because in that attempt all control of the ship would have been lost, and Lerro would have had no idea where he was going or where he would end up. All of the other expert pilots testifying on the question agreed with Clothier that going full-astern was not a viable, reasonable, prudent option. Clothier further testified on behalf of Petitioner that he did not think Lerro's choice of the option of going through the bridge was wrong. Rather than being critical of Lerro's choice of options Clothier was critical of the manner in which Lerro executed what Clothier considered a valid option. Clothier felt that Lerro should have initiated his turn through the bridge approximately 600 feet earlier than the turn was initiated, and he was critical of Lerro for making a normal rate turn. In Clothier's opinion Lerro should have made a faster-than-normal rate turn. It is concluded as a matter of fact that upon losing visibility and radar contact in the storm Lerro had three reasonable options in trying to avoid an accident. Those three options included turning hard port, turning hard starboard, and attempting to steer successfully through the bridge. The options chosen by Lerro, steering through the bridge, was a reasonable, prudent option. Further, the evidence does not establish that Lerro, in deciding to make a late, normal rate turn failed to do or consider those things which any reasonable, prudent pilot under similar circumstances would have done or considered. Neither does the evidence establish that Lerro did or considered things which any reasonable, prudent pilot would not have done or considered under similar circumstances. Petitioner presented the testimony of Anthony Suarez, a collision analyst who by discipline is a hydrodynamicist. Suarez presented several calculations he had made for the purpose of showing that the SUMMIT VENTURE, as it was steered by Lerro, could not have successfully navigated under the Sunshine Skyway Bridge. However, Suarez testified that his calculations were based on the assumption that the wind remained constantly astern of the SUMMIT VENTURE. He further testified that if in fact the wind was out of the southwest or the northwest his calculations would not be representative of the trajectory of the SUMMIT VENTURE in those conditions. Since it has been concluded as a matter of fact that the winds were initially out of the southwest, swinging to the northwest, the testimony of Suarez, with regard to his calculations projecting a trajectory over the ground of the SUMMIT VENTURE purporting to show that it could not have been steered safely beneath the Sunshine Skyway Bridge, is rejected for the purposes of this proceeding because of its failure to be based on the facts as they occurred. As established by the testimony of the expert pilots appearing in this cause, the speeds maintained by Lerro on the SUMMIT VENTURE during her approach to the Sunshine Skyway Bridge were reasonable and prudent under the existing weather conditions. Slower speeds on the vessel would have risked control problems. No evidence was presented in this proceeding from which it could be concluded as a matter of fact that Lerro lacks either the ability, legal qualifications, or fitness to discharge the duties of a pilot. Respondent's Exhibit #5 is a summary of marine casualties or accidents in the Port of Tampa between October 1, 1975 and October 2, 1980, involving the pilots of the Port of Tampa. The twenty-one pilots working the port during that time averaged six accidents. Lerro had seven accidents. No evidence was presented which would show that any of the accidents in which Lerro was involved caused significant damage or any injury. Lerro's record with regard to the number of accidents was about average for the pilots of the Port of Tampa. With regard to Lerro's past experience as a pilot, he was employed by the Panama Canal Company from January 6, 1976 to November 12, 1976. During that time he served as a pilot in training and, upon completion of the normal training period, as a vessel pilot with that agency's Marine Bureau. At no time during his employment with the Canal Company was any adverse or disciplinary action taken against him and none was pending at the time he voluntarily terminated his service with the company. He terminated his service in Panama to accept a better position as a pilot in the Port of Tampa. During the course of his employment with the Panama Canal Company Lerro was not involved in any marine accidents investigated by the Canal Zone Government Board of Local Inspectors, the local organ responsible for such investigations.
Recommendation Petitioner having failed to establish the allegations of the Administrative Complaint that Respondent was guilty of negligence and incompetence in the performance of his piloting duties on May 9, 1980, it is therefore RECOMMENDED that: The Respondent, John Lerro, be found not guilty of negligence and incompetence and that the Administrative Complaint be DISMISSED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of January, 1981. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1981. COPIES FURNISHED: Kenneth G. Oertel, Esquire Lewis State Bank Building, Suite 646 Tallahassee, Florida 32301 C. Steven Yerrid, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Kenneth E. Apgar, Esquire de la PARTE & BUTLER, P.A. Suite 102 403 North Morgan Street Tampa, Florida 33602 Michael Schwartz General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent acted as a yacht broker in Florida without holding a yacht broker's license issued by petitioner?
Findings Of Fact Respondent, presently retired, was formerly employed with Sun Yacht Charters located in Camden, Maine. He has never been licensed by the State of Florida as a yacht and ship salesperson or broker. Respondent attended the 57th Annual Miami International Boat Show and Strictly Sail (boat show) held February 12-18, 1998. Respondent was in attendance at the Sun Yacht Charters Exhibit Booth, a booth in the Strictly Sail portion of the boat show. Investigators and other Petitioner employees regularly attend this specific boat show in order to find unlicensed activity, such as selling and brokering of regulated yachts by persons not holding valid salesperson or broker’s licenses. On February 13, 1998, Petitioner investigators James Courchaine and Peter Renje attended the boat show. They carried fictitious business cards with false names and the designation "Yacht Consultant" on the cards. Courchaine’s fictitious name was James K. Ramson. Renje’s card bore the name Pete Benson. While walking through the Strictly Sail portion of the show, the investigators saw the booth for Sun Yacht Charters and Respondent. Respondent’s name tag read "Pat Raum." Outside the tent, the two investigators checked their list of licenses and did not find Pat Raum’s name listed. Although a license is not required in the sailboat portion of the show, Courchaine, posing as James K. Ramson, went back into the show and introduced himself to Respondent, handing him the fictitious business card with the name James K. Ramson, Yacht Consultant, displayed on it. Courchaine, a/k/a Ramson, inquired of Respondent that he was looking for a boat for a client for an outright purchase for a client. Courchaine asked if there were any boats for sale through Sun Yacht Charters. Respondent replied that sometimes people in their charter program wanted to sell a boat and that Sun Yacht Charters would sell it for them. He gave Courchaine his business card identifying himself as Pat Raum, Director of Yacht Sales for Sun Yacht Charters. The business address on the card was Camden, Maine. Respondent also gave Courchaine a specifications sheet on the Southern Belle, destined to come out of the charter program in April of 1998. The specifications sheet listed an asking price of $9,000 for the boat. From conversations he had with Petitioner's employees at a previous time when he discussed obtaining a Florida license, Respondent understood that Florida law did not permit him to sell or purchase yachts in Florida as an owner's agent. On February 17, 1998, following contact with Sun Yacht’s Camden office, Courchaine learned that Respondent was still in Florida. Courchaine contacted Respondent and asked for a contract. Believing that he was dealing with a licensed Florida Yacht broker, Respondent agreed to what he thought was an appropriate arrangement between himself and Courchaine whereby the sale of the Southern Belle would involve a 30/70 split on the commission from the sale. Respondent later confirmed to Courchaine in a fax message that same day that Courchaine, a/k/a Ramson, would get three percent of the sales commission. Also, he included in the fax to Courchaine a blank Yacht Purchase and Sale agreement. It was Respondent’s understanding that in the event of a sale, the matter would have to be handled by Courchaine a/k/a Ramson, or another Florida broker, that he, Respondent could not act as a broker in Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order dismissing the notice to show cause. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999. COPIES FURNISHED: Kathryn E. Price, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Raum Post Office Box 302 Kennebunkport, Maine 04046 Philip Nowick, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Robert F. Park has been a licensed Tampa Bay pilot for some 26 years. All his piloting experience has been in the Tampa Bay area where he has piloted over 9,000 vessels in and out. He has piloted some fifty vessels in and out of the Florida Power Corporation Terminal at Weedon Island. The Florida Power docking facilities at Weedon Island consist of a north and a south pier. The south pier is approximately 1,100 feet long, the north pier is about 700 feet long and the channel or slip in between is approximately 250 feet wide. On August 5, 1982, at 1230 hours, respondent boarded the M/T ZAMORA for the purpose of docking it at the Weedon Island facility. The ZAMORA is a large tanker approximately 590 feet long, and, at the time, was carrying 155,000 barrels of oil. Upon boarding the vessel, respondent reviewed posted documents concerning the vessel in the wheelhouse and observed the condition of the vessel and its crew. He does not recall asking the captain whether the vessel had any particular maneuvering problems or characteristics. The ZAMORA, with two tugs assisting, was to enter the turning basin of the Weedon Island facility and moor, port side to, at the south pier. The A.P. ST. PHILLIP was positioned on the stern and the YVONNE ST. PHILLIP was placed on the starboard bow. The A.P. ST. PHILLIP, having 2800 horsepower, was made up with one headline to the center chock aft, or the Panama chock, so that it could work either the port or starboard quarter of the ZAMORA. The forward tug, the YVONNE ST. PHILLIP, having 3300 horsepower, was made up to push the bow toward the south pier for docking. The placement of the two tugs in this manner is appropriate and is an effective means of maintaining a vessel's approach in a docking maneuver. The YVONNE ST. PHILLIP and the A.P. ST. PHILLIP are among the most powerful harbor tugs in the Tampa Bay area. Two employees of the Weedon Island facility, both of whom had seen over a hundred vessels enter that facility for docking purposes, observed the ZAMORA make its entrance into the slip area between the north and south piers. One of these eye witnesses felt that the arrival of the ZAMORA was unusual because of the speed with which it was approaching the dock, and the angle of the vessel gave the appearance that it was a little out of control. The other witness observed that the ZAMORA, as it entered the slip, "was coming faster than what I normally see for a tanker." (TR 47). Neither of these witnesses were able to estimate, in knots or miles per hour, the actual speed of the vessel. According to the respondent and the captain of the YVONNE ST. PHILLIP, the speed of the ZAMORA upon entering the dock area was between one and two knots. This is not an excessive speed when approaching a dock. Respondent maintained constant radio contact with both tug captains whom he had worked with previously over a long period of time. The initial entry into the Weedon Island facility was without incident. Tidal and weather conditions were good. Respondent intended to head the ZAMORA toward the south dock on a slight angle. It is typical for a vessel's stern to veer to port during a backing maneuver, thus causing the bow to move to the right. The first time respondent backed the ZAMORA was during the entrance to the slip area. When he did so, the vessel backed very strongly to port. At that time, he instructed the A.P. ST. PHILLIP (the aft tug) to swing around and come ahead on the port. At all times, the YVONNE ST. PHILLIP was applying momentum to the starboard bow of the ZAMORA, which had the effect of slowing down the bow's swing to the right. The A.P. ST. PHILLIP was coming ahead and applying force to the stern of the ZAMORA. At some point after the vessel's bow began veering to the right, the line parted on the aft tug A.P. ST PHILLIP. The captain of the YVONNE ST. PHILLIP noticed no difference in the movement or rate of swing of the ZAMORA after the aft tug's line was parted. The ZAMORA's bow continued to veer to the right and ultimately, at approximately 1530 hours, struck the north pier of the Weedon Island facility, causing extensive damage to the pier and damage to the ZAMORA. The annunciator tape or telegraph on the ZAMORA reveals that respondent gave the following engine commands: 1520.5 half speed 1521 slow ahead 1525 stop 1526 dead slow ahead 1526.5 stop 1528 slow astern 1529 stop 1529.5 full astern 1530 full astern 1531.5 stop The second "full astern" command at 1530 constitutes a "jingle" and signifies an emergency situation. Respondent was attempting to get enough sternway on the vessel to swing clear of the north pier and to give the stern tug time to get another line up and proceed onto the dock. This did not occur. It was the opinion of Captain Park that the cause of striking the north pier was the loss of the assistance of the aft tug. It was the opinion of the petitioner's expert witness, based upon his review of the investigative file and the testimony of the forward tug captain, that the casualty would have occurred whether or not the aft tug's line had parted. There was also testimony that, depending upon the actual positioning and movement of the A.P. ST. PHILLIP, the parting of its line could have been beneficial to the ZAMORA in counteracting the vessel's veer to the right. A Marine Casualty Report was filled out by the respondent on August 5, 1982, the same day as the incident. It was received by the Department of Professional Regulation on August 16, 1982. The form provided for such reports advises that the law requires the reporting of a casualty within seven days of the casualty and that failure to fully and accurately complete the report will result in disciplinary action against the licensed State pilot. The form also provides that responses to any question of "not available" are not acceptable responses. The form requires the attachment of a copy of the bell book or ship's log entries covering the casualty and an additional page containing remarks or additional comments concerning the casualty. To the bottom of the form, respondent printed the words "NOTE -- Additional report will follow." It was respondent's intent to obtain a translation of the log book entries written in Spanish. An investigator with the Department of Professional Regulation interviewed respondent concerning this incident on September 9, 1982. Counsel for the respondent informed the investigator that he was making efforts to obtain and supply a translated version of the log book, and that once respondent had that information and the results of an underwater survey, respondent would be fully apprised of the facts and would supplement the Marine Casualty Report. The evidence in this proceeding does not reveal that an additional or supplemental report was ever filed with the petitioner.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of negligence in the performance of piloting duties and failure to file a complete written report of the casualty within seven days in violation of Sections 310.101(4) and (5), 310.111, Florida Statutes, and Rules 21SS-8.01(4) and (5) and 21SS-8.07(1)(n) (currently numbered (1)(l), Florida Administrative Code. For such violations, it is RECOMMENDED that the Board impose an administrative fine against respondent in the amount of $1,000.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1984. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1984. COPIES FURNISHED: W. B. Ewers, Esquire Post Office Drawer 9008 Coral Springs, Florida 33075 David G. Hanlon, Esquire Post Office Box 3324 Tampa, Florida 33601 C. Steven Yerrid, Esquire Julia S. Chapman, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Joe W. Lawrence, II Director Division of Regulation Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker Executive Director Board of Pilot Commissioners Deapartment of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On May 29, 1977, petitioner Artur Zoelfel entered into a written agreement to buy the yacht Superior Queen from H-E-R Leasing Corporation "for the total sum of $125,000.00 (one hundred, twenty-five thousand dollars)." Petitioners' exhibit No. 1. H-E-R Leasing Corporation is not a licensed or registered dealer in Florida. An addendum to the contract, dated May 30, 1977, was signed by Artur Zoelfel but was not signed by anybody on behalf of H-E-R Leasing Corporation. Petitioners' exhibit No. 2. On June 16, 1977, an assistant secretary for maritime affairs in the United States Department of Commerce entered an order, No. MA-15079, approving the sale of the Superior Queen to "Artur Zolfel, a West German citizen, and the transfer of said vessel to Federal Republic of Germany registry and flag . . . upon the condition that there shall be no liens or encumbrances recorded against such vessel . . . at the time of its transfer . . ." Petitioners' exhibit No. 2. On June 27, 1977, an anonymous telephone caller told Bernard Frank Fox, respondent DOR's area supervisor in Broward County, that petitioner had bought the Superior Queen. As the result of investigation by other employees of respondent DOR, Mr. Fox concluded that this information was correct and set in motion events that culminated, on June 30, 1977, in a levy on the Superior Queen by the Broward County sheriff's office. At that time, respondent DOR claimed that fifty-two hundred dollars ($5,200.00) in tax was owed, on the assumption that the Zoelfels had paid the asking price for the Superior Queen, which had purportedly been one hundred thirty thousand dollars ($130,000.00). After the levy, one Paul C. Mueller approached Mr. Fox on behalf of Mr. and Mrs. Zoelfel and represented to Mr. Fox that petitioners had purchased the Superior Queen for one hundred twelve thousand five hundred dollars ($112,500.00). On that basis respondent DOR accepted forty-five hundred dollars ($4,500.00) in satisfaction of its claim for tax, and the sheriff released the Superior Queen. As reflected by the bill of lading, petitioners exhibit No. 4, on August 2, 1977, petitioner Artur Zoelfel caused the Superior Queen to be loaded onto a freighter, M/S Finn Enso, in Tampa, Florida, bound for Hamburg, West Germany. Neither of the petitioners is a licensed exporter.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the notice of assessment be upheld. DONE and ENTERED this 17th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Thomas E. Hunt, Esquire Suite 302, Building 2 3020 North Federal Highway Fort Lauderdale, Florida 33306 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The claim imposed by the Department of Revenue stems from an audit conducted by Mr. George Thomas Lloyd, Jr., an employee of the Department of Revenue. Mr. Lloyd examined the books of the corporation and the receipts for items purchased and compiled a ledger of particular items which, in Mr. Lloyd's opinion, were not parts of the ship and upon which a use tax was due. At the hearing on this case this ledger was introduced as Joint Exhibit No. 1. It is a composite exhibit consisting of 157 pages. This ledger reflects purchases in the amount of $1,953,426.13 upon which the Department of Revenue claims tax is due. The total tax claimed by the Department of Revenue is $72,630.19 for taxes, penalties, and interest through February 16, 1976. The Petitioner is a Norwegian corporation with principal offices located in Oslo, Norway, and an office in Miami at Biscayne Boulevard. Petitioner owns three cruise vessels of Norwegian ownership and registration which sail out of the port of Miami, Florida to ports in the Caribbean. These cruises last several days. The parties have agreed that the Petitioner is in the exclusive business of transporting passengers and goods in foreign commerce. Mr. Lloyd, who conducted the audit above mentioned, testified that he prepared Joint Exhibit No. 1 by evaluating the items described in the corporation's records and used his own independent judgment in a determination as to whether those items were, or were not, parts of a vessel. If he determined they in fact were not parts of the vessel, he concluded that a use tax was owed to the State on the purchase price of those items. Mr. Lloyd stated that his determination as to whether a particular item was indeed a part of a ship was based on his independent judgment which was largely a question of whether the item was physically attached to the vessel. The individual items are far too numerous to describe in any detail herein, but they range from napkins, stirrers, postage meters, paper products, grinding wheels, coffee pots, towels, party favors, games, sandpaper, repairs to a shotgun, movie rentals, hardware items, batteries, flowers, bug spray. The items in question were delivered to Petitioner's warehouse on Dodge Island, Miami, Florida for lading on board one of Petitioner's three cruise vessels. The cruise vessels tie up next to the warehouse where the goods are stored and from time to time these goods are brought aboard each of the vessels. The items in question are all used aboard each vessel during the vessels' passenger cruises. The only time the cruise vessels spend within the territorial limits of Florida are for a period of time on Saturday of each week for the purpose of embarking and disembarking passengers for each weekly cruise. These articles, somewhat above described, are all used in connection with the ship's operation which is the conduct of weekly pleasure cruises from Miami to the Caribbean. The question of whether a particular item is a part of a vessel is one of definition and common sense. The auditor, Mr. Lloyd, appeared to accept a definition similar to what one would use in determining whether or not an item was a fixture in regard to realty. However, there are all types of vessels and it appears to this Hearing Officer that what may be a part of one type of vessel would have no function on another. There is really no relationship between what may be considered a part of real estate and what may be considered a part of a ship. There also appears to be no logic behind a definition which limits "parts of a ship" to those items which are physically attached to the vessel. Most would agree that pumps are parts of a ship; even though they may not be attached and can be easily removed, they are necessary in keeping a vessel afloat. Similarly, a compass and other navigational equipment may be removed, but that would hardly make them any less a part of a ship. As the Petitioner points out in its Memorandum, the most logical approach to a finding as what is truly a part of a vessel must ultimately hinge on the nature of the vessel, and a broad definition of seaworthiness. What are clearly parts of some ships have no purpose on others. A cargo freighter would need hoists and cranes which are not required on a tug. Each type of vessel uses equipment suited to that ship's purpose and type of cargo. While a tanker may be in the business of transporting oil, a very specialized cargo, a cruise ship is in business of transporting people and catering to their needs and entertainment. Therefore the equipment of a cruise ship would appear more frivolous to those accustomed to ships transporting basic raw materials. Both vessels, however, are in the shipping business. Since the parts of a ship must be defined as those items which serve a useful purpose to the operation of the ship, the decision then depends not on the nature of the item, but of the vessel. An oil tanker might conceivably have equipment or parts which are so specialized that they could serve no other useful purpose except aboard that type of vessel. The cruise ships in question in this case, however, use equipment which are apparently commonplace and equally useful on land as on sea. What items may properly be considered parts of a cruise ship depend on how those items relate to the operation of the vessel. While the equipment of an oil tanker would hardly be expected to be directed toward mirth; likewise, it is unreasonable for the equipment of a cruise ship to be limited to the bare necessities of a spartan voyage. As the testimony on behalf of Petitioner indicated, all the items listed on Joint Exhibit No. 1 do serve a purpose aboard the vessel and all items were purchased for use aboard the company's three vessels. It is therefore concluded that all the items listed on that schedule are in fact parts of the vessels owned by the Petitioner. The Petitioner has raised several other issues in its defense to tax assessment of the Department of Revenue. Among other things the Petitioner claims that the items in question are not stored for use in Florida. The facts above indicated that the items were purchased by the corporation and no sales or use tax has yet been paid upon them. The items are stored at the Dodge Island Warehouse owned by the Petitioner and are from time to time placed aboard vessels operated by the Petitioner corporation. From the facts presented at this hearing, the ships only spend several hours in the port of Miami each Saturday of every week. The items, therefore, are principally used while the vessels in question are on the high seas or in foreign ports. Except for this period of time on each Saturday when the vessels are in port, these items are used while the vessels are in engaged in foreign commerce.
Recommendation For reasons that the items in question are parts of the vessels and that they are used and consumed outside the state of Florida the tax assessed by the Department of Revenue should be disallowed. ENTERED this 20th day of October, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel G. LaPorte, Esquire 150 Southeast Second Avenue Miami, Florida 33131 E. Wilson Crump II, Esquire Assistant Attorney General Department of Legal Affairs Tax Division, Northwood Mall Tallahassee, Florida 32303 Ed Straughn, Executive Director Department of Revenue Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF REVENUE KLOSTERS REDERI A/S, d/b/a NORWEGIAN CARIBBEAN LINES, Petitioner, vs. CASE NO. 76-428 DEPARTMENT OF REVENUE OF THE STATE OF FLORIDA, Respondent. /
Findings Of Fact This case is promoted based upon the previously mentioned Administrative Complaint and the Respondent's ensuing request for formal hearing pursuant to Section 120.57(1), Florida Statutes. Respondent is licensed by the Board of Pilot Commissioners pursuant to Chapter 310, Florida Statutes. He holds pilot license No. 0000033. Register has served as a licensed pilot in the St. Johns River in the Port of Jacksonville, Florida, for a period in excess of 20 years. Respondent has piloted ships in and out of the Port of Jacksonville on the St. Johns River approximately 20,000 times. One of the assignments which Captain Register had as a pilot pertained to piloting the outbound vessel Oakland on the St. Johns River in Jacksonville, Florida, on March 19, 1983, commencing approximately 2303 hrs when he received the con of the vessel from the dockingmaster. The Oakland is a C-4 type of vessel or container ship which is approximately 685 feet long and 96 feet wide. At the time of these events in March, 1983, the Oakland was sailing under Registry, bound for a foreign port. The vessel was heavily laden, but not in excess of cargo capacity. The trip out the St. Johns on March 19, 1983, is graphically depicted in Petitioner's Exhibit No. 3, admitted into evidence, which is a chart diagram of the river and adjacent shoreline, together with approximate positions of the Oakland and commands given taken from an interview with the Respondent and from the ship's log. The weather on this occasion was not an inhibiting factor in the navigation of the vessel, in fact the weather was "outstanding," with westerly winds of 8 knots. The steering gear on the vessel had been checked at 2130 hrs the day of the scheduled voyage of March 19, 1983, and was found to be in acceptable working order. No problems had been experienced with the steering from mid- January 1983 through the date of the aforementioned check. When Captain Register took over at 2303 hrs, the master of the vessel and other crew members were on the bridge to assist. In addition, the chief mate was on the bow as lookout. The chief mate, serving as anchor watch on the bow, was in communication with the ship's master via walkie-talkie. Once the vessel had been steadied up in the river, upon command of the Respondent, the vessel proceeded at full ahead and reached the approximate velocity of 10 to 12 knots before 2312 hrs. At 2312 hrs, Respondent ordered half ahead to maneuver in the Long Branch Range portion of the St. Johns. Half ahead represents 6 to 8 knots of speed in the water for the Oakland. At 2314 hrs, the command of slow ahead was given to avoid undue suction related to a vessel in a docking area adjacent to the St. Johns, known as the bulk terminal. When that command was given at 2314 hrs, the Oakland was carrying 6 to 8 knots of speed in the water. Also, at 2314 hrs, the chief mate was told to "stand by" the anchors. This command was given by Captain Fisher, the Oakland's ship's master. In this time frame, 2314 hrs through 2316 hrs, the chief mate had some concern that they might have some trouble maneuvering by the Meton, a vessel moored in the St. Johns ahead of the Oakland as it was proceeding outbound. This vessel was a different ship than that found at the bulk terminal. The chief mate expressed the opinion that it looked like they would probably clear the Meton but it would be a close call. Five to ten seconds later, he told the bridge they weren't going to make it. The bow watch was assisting in this regard in view of the fact that the bow is some 600 feet forward of the bridge where the pilot and master were located. Between 2314 hrs and 2316 hrs, Register gave the command half ahead and the speed of the Oakland at that time was approximately 5 to 6 knots. Register also ordered 20 degrees right rudder to negotiate the Chaseville Turn and avoid the moored vessel Meton, a gasoline tanker. The ship did not respond readily to the 20 degree right rudder and immediately thereafter a hard right rudder command was given by Register. At 2316 hrs, a danger signal was sounded upon instigation of the Respondent. At 2317 hrs, Register ordered full astern with a jingle and the command was given to let go of the anchors. This command was relayed by Fisher to the chief mate on the bow. Additionally, the crew member on the bridge at the helm was responding to commands by Register and Register's commands were being communicated to the engine room through the ship's master. When the command to let go of the anchor was received by the chief mate, he went to the brake wheel to comply with the command. A boatswain was there to assist him. Upon reaching that location, the Oakland was approximately 200 feet away from the Meton, too late for the deployment of the anchors to help avoid a collision and the chief mate abandoned his post and moved away from the bow area without dropping the anchors. At that moment, the two ships were approximately 100 feet apart. In effect, there was not enough time to drop and set the anchor from the time the command was given at 2317 hrs and the time of an eventual collision between the Meton and Oakland. The collision occurred in view of the fact that the efforts to turn away from the Meton and avoid the collision, i.e., the 20 degree right rudder, hard right rudder and full astern were not sufficient to avoid that collision. The collision occurred at 2319 hrs when the Oakland's bow struck the Meton's bow. At the point of impact, the Oakland was proceeding at 2 to 3 knots. Structural damage was caused to the vessels. No indication was given as to any injuries of ship personnel or others. From 2303 hrs through 2319 hrs, the critical period in consideration, ample assistance was afforded to Captain Register by members of the Oakland's crew. After disengaging from the collision, the steering gear was checked by the chief engineer on the Oakland with particular emphasis on the rudder response and no abnormalities were detected. Tests by Coast Guard personnel made at dockside at 0930 hrs on March 21, 1983, and again while the ship was underway on March 24, 1983, did not reveal any abnormalities in the steering gear and response time for operation of the rudder was found to be within acceptable time constraints. The repairs that were made to the "key" involved in the steering mechanism, effective March 18, 1983, and repairs to the telemotor subsequent to the accident were routine and not contributors to the collision between the Oakland and Meton. Captain Register and the master expressed surprise at the inability of the Oakland to maneuver by the Meton without collision. Nonetheless, neither of these witnesses or other persons who gave testimony were able to indicate some mechanical malfunction or outside contributing force which would have led to the eventual collision between the ships. Nor were the other witnesses helpful in this regard, to include pilots Steele and Williamson. In essence, no explanation was given to establish why a ship which was shown to be in good repair, sailing in uneventful weather, should collide with a stationary object, the Meton. Consequently, it is determined that negligent judgment in the operation of the ship on the part of the Respondent led to the collision. The testimony by Captains Fisher, Steele and Williamson as to the conduct of the Respondent in his performance do not excuse his negligence. Instead they speak convincingly to Respondent's efforts to mitigate the results of his error in judgment.
The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2018.
Findings Of Fact The Department of Health, Board of Pharmacy, pursuant to Chapter 465.004, Florida Statutes, has authority to adopt rules pursuant to Sections 120.536(1) and 120.54, Florida Statutes, and to implement the provisions of Chapter 465, Florida Statutes, conferring duties upon the Board. At all times material hereto, Albert F. Williams was the holder of pharmacist license No. 0008425 issued by the State of Florida, Board of Pharmacy, and was also licensed as a consulting pharmacist.1 At all times material hereto, Stich Pharmacy, d/b/a Skycrest Pharmacy (Skycrest) was the holder of Pharmacy license No. 0012143, issued in 1950 by the State of Florida, Board of Pharmacy, for operation of a community pharmacy.2 By reference, the six statements of facts above listed in the preliminary statement and stipulated to by the Petitioner and Respondent are incorporated herein. At all times material hereto, Albert F. Williams was the sole owner of Skycrest Pharmacy and was employed by Skycrest as its prescription department manager. As pharmacy manager, Albert Williams knew from previous experience that he was the person responsible for compliance by all Skycrest employees, including pharmacist, trainees, pharmacist-technicians, and delivery person, with Florida Statutes, administrative rules, and federal regulations governing pharmacy and pharmaceuticals in the operation of a community pharmacy business servicing both institutional and public clients, to include, but not limited to, maintaining all drug records and providing for the security of the prescription department. At all times material hereto, Skycrest, a community pharmacy, filled and refilled prescriptions received from nursing homes, refilled prescriptions received from Assisted Living Facilities (hereinafter ALFs) and refilled prescriptions received from the general public as walk-in clients. At all times material hereto, Skycrest accepted the return of previously dispensed pharmaceuticals contained in vials and contained in cassettes, from numerous nursing homes, from numerous ALFs, and from persons who represented themselves to Skycrest employees as "family" or "caretakers" of persons residing in various nursing homes or residing in various ALFs. At all times material hereto, Skycrest took back cassettes containing previously dispensed inpatient medications. Skycrest redispensed medications and returned both previously dispensed medications and redispensed medications in cassettes to residents in nursing homes and ALFs. The prescription labels on the bottom of incoming cassettes were not changed to reflect redispensing of additional medications prior to those cassettes being redelivered to the respective nursing homes and ALFs. At all times material hereto, Skycrest employed a driver, who every seventh or eighth day, picked up Opus system3 cassettes from various nursing homes and ALFs. These cassettes were returned to Skycrest, whereupon empty and partially used unit dose compartments would be refilled with redispensed medications. Redispensed and unused previously dispensed medications were then returned to the respective nursing homes and ALFs in the refilled and redispensed Opus system cassettes. At all times, material hereto, Albert Williams, admittedly directed the business of the Skycrest pharmacy department to accept "returned previously dispensed mediations, not given to patients nor paid for by the nursing homes or ALFs, because such medications are owned by Skycrest; that additional redispensed medications were also owned by Skycrest until nursing homes and ALFs made monthly payment for the medications given to their patients, and that all payments to Skycrest from various nursing homes and ALFs were to be computed from and based upon the Medical Administration Records4 (herein after MAR) maintained by Skycrest and maintained at each nursing home and each ALF serviced by Skycrest." At all times material hereto, Skycrest received and accepted controlled substance medications in vials brought in by "caretakers" and/or "family" members of residents living in nursing homes and ALFs; took controlled substance medications from returned vials, added controlled substance medication to the returned controlled substance medication taken from the vials and thereafter redispensed controlled substance medication in the Opus system cassettes to licensed nursing homes and licensed ALFs. Mr. Alfred Williams, as pharmacy manager of Skycrest, operated the pharmacy on his belief that the law provided that Skycrest could take back medications, and those medications previously dispensed but not ingested could be redispensed. Mr. Williams acted on his belief that the law was written because many pharmacies were taking back previously dispensed medications and redispensing, and that the law was aimed to help reduce the burden of expense on patients' families. Mr. Williamss admitted that he does not know whether or not the law upon which he operated Skycrest and relied upon applied to institutional pharmacies only and not to community pharmacies servicing ALFs and nursing homes. Petitioner does not contest the fact that the Board of Pharmacy has approved the Opus cassette system as an acceptable closed unit dose system when employed in accordance with applicable rules. The expiration dates for medications found in Skycrest pharmacy are written on the containers in which the pharmacy received the medication from a pharmaceutical wholesaler. At all times material hereto, Skycrest would accept vials of outdated, returned controlled medication and would keep those vials for an undetermined length of time in a box for disposal; or should a customer or caretaker come back and ask for his/her vials, they were returned to those customers. Mr. Alfred Williams did not keep a separate record of the date each vial was returned to the pharmacy; to ascertain a return date Mr. Williams would refer to Skycrest's copy of the MARs. At all times material hereto, Mr. Alfred Williams knew that when dispensing controlled substance medications, the dispensing pharmacist must instruct the recipient of the controlled substance that if it is not used by the patient, that it has to be destroyed at that location. The returned vials of dated controlled medication would be kept by Skycrest for a year after return for either use by the customer or ultimate disposal by Skycrest. Mr. Alfred William admitted that the destruction of controlled substance medications at the patient's location did not occur in the Opus unit dose system which he, as manager of Skycrest pharmacy department, instituted and continued in the exchange every seven days, resulting in returned controlled substance medication ending up in possession of Skycrest pharmacy department after having been redispensed. Mr. Williams' response to allegation (b) of the complaint, was that his pharmacy, following the accepted standard of practice in the pharmacy profession, when confronted with prescriptions without dates, would call the prescribing physician's office to confirm missing dates (and other needed information, if any) and the information provided was entered into Skycrest's computer system. With "missing date" information from the face of the prescription, but contained in Skycrest's computer system, compliance with the purpose and intent of the rule is accomplished. On or about March 31, 1998, agency employees, William Herbert, investigator; Wayne Rowe, investigator trainee; and Dennis Force, photographer, conducted an unannounced inspection of Skycrest pharmacy. During the investigation, the investigators made observations of vials containing legend medications and controlled substance medications on active dispensing shelves. Petitioner's Exhibit No. 4 contains the name of the medication, prescription number and dispensed date of cassettes with Skycrest pharmacy labels; medication in vials from various Walgreen pharmacies, medication in cassettes with labels from other than Skycrest pharmacy, and unit dose pre- packaged medications from various pharmacies. Exhibit No. 5 is comprised of photos of cassettes containing medications assigned to various ALFs with each ALF's name taped on the bottom of each active shelf. Exhibit No. 6 is comprised of two original prescriptions and one prescription from Dental Emergency Room, PA,. Based on experience as an agency field investigator, William Herbert professed familiarity with pharmacy licensing requirements and with Chapters 499 and Chapter 893, Florida Statutes, regarding controlled substance and adulterated pharmaceuticals and medicines. His uncontroverted testimony was that only three ALFs in Pasco, Pinellas, and Hernando counties are licensed to have on-site pharmacies and a consulting pharmacist, which permits resident patients of those facilities to return scheduled medications back to the dispensing on-site pharmacy for redispensing.5 Skycrest, a community licensed pharmacy, is limited in its business to dispensing medications to patients on a carry- out basis and can dispense to patients who are housed in short- term or long-term facilities only when each prescription is patient specific. The ALFs and nursing homes, which were serviced by Skycrest via redispensing medication through the Opus unit dose closed system did not have a class I nor II institutional pharmacy license. Accordingly, neither resident patients of those not-licensed-institutions nor the institutions themselves were authorized by statute to return unused medications to non- resident pharmacies, including Skycrest, for redispensing. Notwithstanding the classification of licensure held, institutional class I or class II, neither the nursing homes nor the ALFs are permitted to return controlled substance medication to a dispensing pharmacy for destruction under existing US Drug Enforcement Agency (DEA) rules. Mr. Williams testified that the DEA 222 form is in triplicate. He explained that the one copy taken from his pharmacy by the investigator was incomplete because the controlled substance ordered from the pharmaceutical distributor (one copy sent with order) had not been either shipped by the distributor and/or received by Skycrest at that time. The testimony was that when controlled substances are ordered from distributors one copy of the DEA 222 accompanies that order. Second, when controlled substances are received from distributors, the recipient pharmacy completes the remaining two copies by inserting the date shipment received, source, kind, and quality of materials received. One completed copy of the DEA 222 form is returned to the distributor, and one completed copy is attached to the order and retained by the pharmacy as required by the rule. No evidence was introduced by Petitioner to contradict or challenge Mr. Williams' testimony regarding this system of dating DEA 222 form. Skycrest accepted returned vials containing controlled substance medications and cassettes containing controlled substance and legend medications from non-institutional licensed ALFs and non-institutional licensed nursing homes neither of which had an on-site pharmacy or employed a licensed consulting pharmacist manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Pharmacy, enter a final order of dismissal with prejudice the complaint herein filed against Mr. Albert F. Williams, Registered Pharmacist. It is further recommended that the Board of Pharmacy, order Mr. Albert F. Williams to forthwith surrender Pharmacy license no. 0012143 issued to Stich Enterprises, Inc., d/b/a Skycrest Pharmacy as stipulated by the parties. DONE AND ENTERED this 9th day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2001.
